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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Ben. I have worked large international luxury company

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Hi Ben. I have worked for a large international luxury company for 3.5 years now and sadly over the last 2 years i have been experiencing very bad chest infections and long lingering coughs that have lasted a few months. These chest infections have worsened each time and I am now getting them nearly every 6-8 months and end up being signed off work. The problems I seem to have is that if it does not clear up properly and i return to Customer Services role within a small but air conditioned office I end up becoming ill again. My doctors and my consultant believe the air con could be aggravating my conditions. I have mentioned this to work on many occasion. They have regularly had the air con serviced so we are aware thats ok, however, we were advised by an engineer there visiting on one occasion that the fresh air intake had been turned off to that room due to complaints from smells from the farm next door which was about 2 years ago. Funny how myself and 2/3 others within that office are also suffering with the same health issues. The company have called in someone from Health and Safety to talk to us and basically he has said it ust be down to our hygiene. I and the others mentioned in private to him what the engineer had said and he mentioned he would have this checked out and report back to us - this has still not happened. When i was ill back in March i ended up in hospital. They suspected Bronchitis and Pneumonia. I am still having test now and been advised I am liable to pick up any germs within work esp as I am there for a vast amount of the day due to my very weakened immune system which blood tests have now shown and that since returning to work on a phased return I now have Chronic Fatigue Syndrome - which could only be Post Viral but this is a time will tell. Work have been very uncooperative. I have been requesting to see Occupational Health since March and they keep finding excuses not to involve them saying its a waste of time as they cant help or don't know any-more than my doctor does. They requested a letter from my doctor recently for my prognosis and how they can help - my doctor suggested part time hours for a short while to try to get my health back up and running as I am excessively tired all the time and still recovering having had so many chest infection over the last couple of years and she also mentioned that she feels the air con would not be helping my conditions. She suggested i work 9-330. This letter took a couple of weeks to arrive and in that time i was suffering horrendous 24hour migraines for a period of nearly 2 weeks until I had 2 separate medications prescribed as the 1st one alone did not work. They clearly saw how very ill I was with other staff members mentioning this to my direct management. It was so bad i went home early and nearly crashed my car as I could barely see due to severity. They knew how bad I was before I left. However this was over a busy month when the company went into sale. Because the letter had not arrived in time and even after knowing everything the conversation had with me was --- You are expected to come into work 9 - 5.30 and I expect to see you on Saturday for the Sale. I am also not prepared to change or cover any shift hours for you again and come Christmas time you will be expected to work shift and only have Xmas day off!! Loud and clear that message was. I wouldn't mind but I am one of the only members of the team that ALWAYS works overtime (unpaid) works where required and helps anyone but recently I feel due to this illness they are excluding me from being a member of the team. My boss cant even look at me when she has a team discussion even the Head of Customer Services who sits in our room has not even spoken to me since I was ill in March - absolutely nothing no acknowledgement no how are you now - no nothing! She too has just had a month off from Pneumonia and is on phased return! I have never had complaints about my standard of work or how I write emails or how I answer the phone - I am 43 and have been an executive PA and Office Manager and worked in an HR position in other roles and have YEARS of dealing with internal and external people. All of a sudden they have started picking fault with EVERYTHING I am doing and also I know have to provide evidence of all my doctor and hospital appointments which I have to book off as holiday anyway because we are told too but also I have to provide a comprehensive list everyday before I go home off all my ongoing work which can take a long time to complete and if they read the notes on my open work which they all have clear access too there is no need for the list. So to top things off with all the health issues and how they have been treating me I am extremely depressed and unclear which direction to take right now. I am feeling like they cant just sack me because i regularly get ill but maybe are now going down the route of proving I am incompetent wit
Submitted: 2 years ago.
Category: UK Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. The starting point is that if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss. Capability, where an employee is unable to perform their job, be it due to ill health or another reason, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications. Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee. When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:What was the nature of the illnessWas the employee consulted over their position and did the employer try to ascertain the true medical positionWhat was the likelihood of the employee returning to work or the illness reoccurring in the futureThe effect a prolonged absence would have on the business and the workforceThe availability of other suitable employment that the employee could do instead Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option. It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled, they need to show they satisfy the legal definition of ‘disability’. The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. I will break this definition down:Physical or mental impairment – this can include nearly any medical condition;Substantial effect – the effect must be more than minor or trivial;Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.) If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees. So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination. The first step is to formally appeal the dismissal with the employer using the internal appeals procedure. After that all that can be done is to submit a claim for unfair dismissal in the employment tribunal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.